Thursday, 12 September 2024

Bills

State Civil Liability (Police Informants) Bill 2024

Second reading

Debate resumed on motion of Jaclyn Symes:

That the bill be now read a second time.

Evan MULHOLLAND (Northern Metropolitan) (10:18): Finally we are seeing this bill that was so urgently debated in the lower house that it needed to be guillotined. It was so urgent it needed to wait several weeks for it to be brought up and debated in this chamber. Of the countless instances of reckless disdain and disregard for the rule of law by the Andrews and Allan government, this issue is perhaps the most egregious of the lot. There are not many days in Parliament where a question is as starkly black and white as it is today, as it is with this bill. The Premier is fond of saying, and the former Premier indeed was as well, that in Victoria equality is not negotiable and never will be. It is plain as can be that no person and no member of this place can stand and speak in support of or vote for this bill while also saying they believe in equality before the law and the rule of law in Victoria, because they clearly do not.

Jaclyn Symes interjected.

Evan MULHOLLAND: Ms Symes was interjecting. I will quote from Ms Symes’s first speech in this place. She talked about the fight for fairness, overcoming injustice and, most ironically, equality of opportunity. She also mentioned the importance of accountability. It is clear that these values seem to have lasted as long as an ice cube on a summer’s day, really, in pursuit of this bill.

In our system of government we have a Parliament that makes laws and we have a judiciary that applies them and interprets them. A judiciary is independent of the executive – or at least it used to be, until this Labor government decided covering their own tracks was a bigger priority than one of the most fundamental pillars of our entire system of government. That is what is at risk here with this bill: the fundamental question of whether the rule of law in our system of government is more or less valuable than Labor’s naked political self-preservation that we are seeing today. This bill is a scandalous attempt by Labor to supplant the judiciary and retrospectively change the laws applied at the time to give themselves and just about anyone they can think of immunity to cover for one of the most shocking scandals of government in this state’s history. As my friend the member for Malvern said, this is nothing else but the exercise of naked political power at the expense of the rights of other people.

Let us not for a second forget where this all started – under the former Labor government. The Lawyer X scandal is not new. Even the television series Underbelly about it is more than four years old now. It was revealed an incredible six years ago now that barrister Nicola Gobbo, Lawyer X, informed against her own clients as a human source for Victoria Police in breach of her legal and ethical obligations to observe client legal privilege. Ms Gobbo broke just about every rule in her profession in terms of conduct and obligation – that is a fact – but Victoria Police, right at the top, were complicit in this. This was not a couple of low-level rogues; it was a carefully orchestrated and sanctioned scheme that struck at the very foundations of the judicial system. Their motto is ‘uphold the right’ and their code of conduct calls for them to act impartially and with integrity, and I do not think that can be said by anyone in regard to this sordid affair.

The scandal caused the establishment of a royal commission and a two-year investigation by the Office of the Special Investigator, by former High Court Justice Geoffrey Nettle. Nettle’s attempt to prosecute a number of people over criminal conduct in the Lawyer X scandal was thwarted because the Labor-appointed DPP Kerri Judd SC refused to authorise prosecutions. After two years of investigations, after millions and millions of dollars, after 5000 pages of admissible evidence had been put together and after Justice Nettle’s recommendations that charges be brought against people that had perverted the course of justice, what happened? The Labor-appointed Director of Public Prosecutions denied any charges to go forward. Labor’s DPP said no; she knew better than a High Court judge who had spent two years and 5000 pages of evidence.

As a result of this scandal a number of convictions which were secured using the tainted evidence of Ms Gobbo were overturned. In the case of Faruk Orman, who served 12 years in prison, Victoria’s Court of Appeal said:

… Ms Gobbo’s conduct subverted Mr Orman’s right to a fair trial, and went to the very foundations of the system of criminal trial. There was, accordingly, a substantial miscarriage of justice.

With this bill the government is attempting to shield itself from any responsibility for stealing away over a decade of Mr Orman’s life with grubby, tainted evidence and doing so without admitting any fault or admitting how they destroyed confidence in Victoria Police and in our judicial system. This is how this government operates. It is like what Labor powerbroker Graham Richardson said: ‘Whatever it takes.’

Nobody has been held criminally accountable for one of the greatest legal scandals in our state’s history and one of the greatest legal scandals in our country’s history. Nobody has been held criminally accountable for the fact that a man spent 12 years of his life in prison who should not have. When we debated the Special Investigator Repeal Bill 2023 last year, the Attorney-General said this was not a way to sweep the matter under the carpet. Well, here we are a year later and we are seeing another bill that sees the whole sordid affair swept under the carpet. I recall the committee debate at the time, and Ms Symes said this case would not be swept under the carpet and that there would be proceedings to come. But all of a sudden we see a bill to squash that from ever getting to court. The Attorney said at the time that she found my comments bemusing. There is nothing bemusing about the Lawyer X scandal and the way in which, at every step, Labor has sought to cover up and mislead on this whole sordid affair. We know that clause 5 of the bill extinguishes:

Any cause of action against the State relating to, arising from or in connection with the provision of information or other assistance to Victoria Police by a specified human source …

The bill defines the state in an extremely broad sense to include the state of Victoria, a minister of the Crown, Victoria Police and its members past or present, a public official past or present or any other variations. I hope other members of this place are starting to see the problem here. As the member for Malvern is quoted in the media as saying:

It’s an extraordinary precedent the government’s looking to set, to say the government can pass a law, to say, ‘It doesn’t matter what we did, we’re not responsible, you can’t sue us’.

I also note that this bill specifies that the Charter of Human Rights and Responsibilities Act 2006 does not apply to this act, including section 31(7). Given Labor’s decision recently to oppose my bill that I brought forward to end bikie corruption on building sites by weaponising the charter, I cannot help but notice the hypocrisy here, that they can ignore it when they want to, actually. Labor are big fans of human rights until they get in their way.

Fundamentally, what this bill seeks to do is use the overreaching powers of the state to shield it from damage when caused by its own actions. The legislation is retrospective, which is philosophically a problem on its own and unprecedented in the state of Victoria. As a Liberal I believe in equality before the law. I believe that the state is subservient to the people, not the other way around. I have a problem with the way this bill puts the state government on a different level by allowing it to evade accountability for its actions in a way that no individual citizen could do. For anyone opposite who is going to try to say that opposing this bill would put us on the side of Nicola Gobbo, Faruk Orman or Carl Williams I will say this: the point of equality before the law is that you want fairness and freedoms to apply to all, regardless of whether or not you like them. Even my worst enemies deserve a fair trial and deserve their day in court. To take away these rights from someone in the name of political and financial expediency, as we see on that side of the chamber, really is the bottom of the barrel for this government. It is.

I was amazed to read the minister’s second-reading speech in the other place when he cited the need to fund services that benefit the Victorian community as a reason to strip away rights. Meanwhile, they are cutting hospital funding all over the state – they are cutting everything possible to prop up their Suburban Rail Loop. Maybe if you needed to fund services across the state you could pause the Suburban Rail Loop to do that, not extinguish the rights of people and scrap equality before the law with this scandalous bill. Given this government has wasted, what, $1.3 billion on ripping up the east–west link, $600 million on cancelling the Commonwealth Games and $40 billion in infrastructure cost blowouts, it is hard to believe that, as we heard in the bill briefing, an estimated $45 million at risk in Lawyer X related civil proceedings is the primary motivation for the government introducing its bill. It is not – it is to cover up. This is not about preserving taxpayers money at all; it is about protecting the government from the embarrassment of what might come to trial, and it is worth commenting on the process. We saw the government rush this bill through the Parliament without giving the opposition or the crossbench or the media an opportunity to scrutinise it.

This bill upturns many fundamental principles of legislation, the rule of law and our judicial system. Do not just take my word for it. As the Victorian Bar said in their statement:

The Commonwealth Parliament does not have the constitutional power to enact such legislation, and all Victorian citizens should be deeply concerned that their State Parliament might seek to do so.

To quote the Law Institute of Victoria, this bill:

… fundamentally undermines the rule of law and administration of justice. The State has enormous power over its citizens, and for it to legislate out of liability when the power is wielded improperly is wrong.

Susan Accary, Victorian president of the Australian Lawyers Alliance, calls it a ‘dangerous precedent’ and says it ‘sends the wrong message about police accountability’. So that is just about all the Attorney’s stakeholders. This bill comes into this place with no support from those who know the law and the fundamentals of our justice system. I think it comes here with the support mainly of a Labor government trying to cover themselves up. No other Victorian, no other Australian, no other entity is able to do something wrong and declare themselves beyond punishment. To ask the Parliament to rush it through without care is appalling. The Parliament has a role in scrutinising legislation; that is what we are here for. We are not here to provide a cover-up for a scandal that rocked the core of the state’s legal system.

This is not the first attempt to cover up this sordid affair. Victoria Police desperately tried to stop this from coming to light. Labor abolished the special investigator. Labor’s DPP refused to prosecute any of the recommended charges. Last year they passed legislation specifically permitting lawyers to be used as informants against their own clients, and now there is this shameful bill. The thought of what Labor could do next on this front should send a shiver up the spine of every member of this house. Who knows what fundamental right or pillar of our democracy they will not sacrifice at the altar to save their own political skins. The role of the Parliament, the role of us in this place is to protect the rule of law and the rights of all Victorians. Here in this Council we have statues above us, among others, that represent the values of justice, mercy and wisdom. We ought to oppose this absolutely appalling bill.

I want to speak to Mr Limbrick’s amendment, which he passed around. I think the Attorney-General might have corrected his homework on that. This is important for all of the chamber to listen to to get a perspective of what Mr Limbrick, quite strangely, is trying to do. It caps all claims at $1 million. One civil claim by Faruk Orman, who was jailed for 12 years due to Lawyer X before having his conviction quashed – why should politicians determine or set a limit on what 12 years of liberty taken away illegally is worth? These are matters that should be determined by a court of law according to the law, not by politicians – who often speak about individual rights and speak about the rule of law and lecture everyone else on it – from the consequences of their votes. It will have the effect of stopping any accountability through the courts for the Lawyer X scandal despite Mr Limbrick’s claims. Labor’s DPP refused to allow any criminal charges despite the Office of the Special Investigator undertaking two years of work that recommended charges be laid. Now Mr Limbrick’s amendment will allow the government to make an offer of $1 million and say ‘There you go’ to any claimant to stop the matter going to trial and the truth coming out. Supporting an amendment will support covering up police misconduct and the worst legal scandal in Victorian history.

The civil claims allow an offer of compromise to be made. If a plaintiff fails to accept an offer of compromise from a defendant before the trial and the court ultimately awards the plaintiff less than what was in the OOC, the court will award costs against the plaintiff. This will be absolutely ruinous and dwarf the $1 million cap, meaning that the government can effectively stop anyone or any claim from going to court by offering $1 million. This is what I think Mr Limbrick does not understand – that the claim of $1 million will actually prevent it from going to court, because they will be left with massive legal costs because the up to $1 million cap is compromised, and you can bet that is what the government is going to do. You can bet that is what the state of Victoria will do. The principle that the government can pass any law to absolve or limit responsibility for damage to individual citizens is repugnant. No other citizen in this state can change the rules to limit their liability for damaging others, but Labor and Mr Limbrick will do just that. This is the antithesis of equality before the law. This is why Mr Limbrick supporting a special status for the government at the expense of individual citizens is wrong.

Why is Mr Limbrick from the Libertarian Party supporting a special status for government at the expense of rights of individual citizens? I thought Mr Limbrick was massively in favour of the rights of individual citizens. He speaks to this chamber and then lectures us in the Liberal Party on the rights of individual citizens and breaches of human rights. Well, this amendment is not very libertarian. This is the kind of principled leadership from Mr Limbrick that leads his party to preference the Victorian Socialists over the Liberal Party. It is not very principled libertarian leadership from Mr Limbrick. It is very disappointing. He has decided to extinguish the rights of individuals. It is very disappointing. He does not believe in equality before the law. It is very disappointing that he does not believe in human rights. So next time Mr Limbrick gets up in this chamber and talks about human rights or talks about equality before the law and everyone being equal and the overbearing power of the state, then please remind him of this amendment.

If this bill passes and a precedent is established, anything that the government does that hurts a Victorian can be whitewashed by legislation to limit liability. That is the precedent we are setting here today. Labor’s bill is not about saving taxpayer dollars, it is about avoiding accountability and political embarrassment. The government that set fire to $2 billion by cancelling the Commonwealth Games and the east–west link has no credibility when it comes to saving taxpayer money, and for the government to have the excuse that this is about funding for community services in the community, we know from the bill briefing that you would only be looking at around $45 million. Billions of dollars do not seem a problem for you. Forty billion dollars of infrastructure blowouts do not seem a problem for you, so the real reason behind this legislation is political embarrassment and it is about protecting the state from embarrassment.

I just want to go to some important points on Mr Limbrick’s amendment, by Ruth Parker, principal and director of Galbally Parker Criminal Lawyers, and what Mr Limbrick’s amendment does mean. I think it is important to consult with all stakeholders, and all the Attorney’s stakeholders seem to be against this bill. She clearly does not consult with her stakeholders. Ms Parker says:

Whilst there have been over 1000 criminal cases affected by the misconduct of the State, only two have had their convictions overturned as a result …

So of 1000 criminal cases affected, that is only two. She said:

Those were Mr. Orman and Mr. Cvetanovski. Both were my clients and, accordingly, I can speak with some authority when I say that these appeals were exceptionally hard to achieve. In order to successfully appeal a conviction in these circumstances, there must first be a conviction. Not all affected cases resulted in conviction. For example, Ms. Gobbo informed on Mr. Mokbel in relation to the murder of Lewis Moran. Notwithstanding, Mr. Mokbel was acquitted.

Where there was a conviction, affected by the misconduct of the State / Ms Gobbo, there must be a direct link between the misconduct and the outcome of the trial (ie, the conviction). Further, the miscarriage of justice must be substantial. The very existence of a miscarriage of justice is not enough. There have been appeals, most notably the recent unsuccessful appeal of Karam, where former clients of Ms. Gobbo have not been able to meet the burden …

When the Royal Commission into the Management of Police Informers (RCMPI) was established, one of its tasks was to identify all of those individuals whose criminal cases had been affected. Not those whose convictions were unsafe. Watching the 730Report on Wednesday night, I was concerned about the manner in which the number of affected people has been misused by politicians and in the media as being equivalent (in some way) to the number of individuals whose convictions will be successfully overturned. And, thereafter, who will then sue the State. These statements have been irresponsible, factually baseless and misleading.

When one undertakes even a cursory analysis of the case studies on the RCMPI website, you will see that the vast majority of those affected cases, were not affected in such a manner which could ever lead to a successful appeal, let alone civil proceedings …

Accordingly, you should be satisfied that this bill is not advanced by the Labor Government to avoid a flood of civil claims –

let us get that right –

Rather, it is outrageous legislation directed specifically to erode the legal rights of a very small number of people whose matters are already before the Courts. This is clear enough from its retrospective operation. It is also legislation designed to protect senior members of Victoria Police from being held personally liable for their behaviour. I invite you to ask yourselves: what other limb of the state is afforded such a complete protection from being held liable for its intentional misconduct toward its citizens?

The civil proceedings that are currently underway are advanced, have been ongoing for up to four years and, significantly, relate to intentional torts. These are not torts of negligence. These are lawsuits instigated because of the intentional and injurious misconduct of the State. They are not comparable to motor vehicle accidents (where there are compensation caps in place) or other forms negligent torts. They involve intentional misconduct over a number of years and involving numerous tortfeasors, including very senior members of Victoria Police and a senior lawyer who swore an oath in the Supreme Court of Victoria. This small number of matters are simply incomparable to any other civil suit that our Courts have ever seen.

You can see the views on Mr Limbrick’s amendments are not very flattering. Here we have a case that has been a sordid affair in our state – an absolute scandal. But we have Mr Limbrick, who I thought was a libertarian, really, and I thought if there is someone in this place that is going to stand up for human rights, that is going to stand up for individual freedoms and that is going to stand up for equality before the law, it would be Mr Limbrick. I know, though I was not here at the time, during those COVID times, which were dark times for many Victorians, many people felt that Mr Limbrick was standing up for their human rights and individual rights, particularly on police wrongly going after people about their freedom to protest or what they could do or their vaccination status – all sorts of issues. People looked at him as a principal defender of individual rights. Well, he cannot say that in regard to this bill. He is supporting a special status for government at the expense of the rights of individual citizens.

In this bill, as we know, if an offer of compromise is made and the plaintiff fails to accept that offer of compromise from a defendant before the trial and the court ultimately awards the plaintiff less than the offer of compromise, the court will award costs against the plaintiff. What this means is that that individual will be liable for ruinous costs. I do not think Mr Limbrick understands what he is doing. I have not found a single stakeholder that supports what Mr Limbrick is doing. I do not understand why he is doing this or what deal has been done. It is sad; it is disappointing. He is someone that is usually on the side of common sense, on the side of the individual and on the side of equality before the law, but not in this case. But this does not mean letting the government off the hook for what has been a sordid affair – what has been a disgraceful attempt at a cover-up. We saw the disgraceful rushing through of this bill as some sort of emergency bill. It was then just left in the upper house while trials were underway to try to extinguish themselves from the issue. We know that costs are not the factor here, nor the need to fund community services for what is a $45 million expectation. This government does not seem to have the respect for taxpayer money to all of a sudden need to find money to fund community services. It could just scrap the Suburban Rail Loop if it needed to do that. $45 million is not going to be a big hole in the budget. This is an outrageous bill, and it should be viciously opposed by this chamber.

Sarah MANSFIELD (Western Victoria) (10:48): I rise on behalf of the Greens to make a contribution to the State Civil Liability (Police Informants) Bill 2024. From the outset, I want to say that the Greens will be opposing this bill. We are aware that there may be amendments that possibly introduce caps to liability, which we will also be opposing should such amendments be made. This is not to say that we do not have sympathy with what the government and the Attorney-General are trying to achieve with this piece of legislation. All of us have had moments in our personal or professional lives where to various degrees we have stuffed up, we have made mistakes and we have had to face some sort of consequence for our actions. I doubt that any of us would have engaged in the kind of conduct described by the High Court as ‘reprehensible’ to the degree that Victoria Police did over a span of four years during the Lawyer X scandal. But we can certainly sympathise with the government wanting it all to end.

As the Premier put it so bluntly last month, serious repeat offenders should ‘feel serious consequences’. While she was referring specifically to criminal consequences for 12-year-old children at the time, we feel that there should be no less expectation with regard to the consequences for the serious repeated misconduct of senior members of Victoria Police. Make no mistake, Victoria Police are responsible for the Lawyer X scandal. Victoria Police are responsible for the royal commission. Victoria Police are responsible for the tens of millions of taxpayer dollars wasted on unnecessary legal costs and damage. And Victoria Police are responsible for the fact that, because of this, Victoria has less money to invest in infrastructure and services, in schools, in health care and in housing that make our communities happier and safer. When it comes to serious misconduct, serious crimes, corruption and incompetence costing Victorians millions in taxpayer money, Victoria Police are repeat recidivist offenders. This is not about the countless good police, who work hard every day to serve and protect us. There are many honest, hardworking people in the police force, and they want to see reform of Victoria Police as much as anyone. This is about an organisational culture that has been allowed to develop, enabled by the Labor government, in which the misconduct of a few has gone unchecked, undermining the reputation of a critical organisation that should be trusted by the community.

We should not forget that as Lawyer X was going on, Victoria Police settled a case brought against it by six young men of African backgrounds for racial profiling and discrimination between 2005 and 2009. This is also an organisation whose entrenched culture of sexual harassment and predatory behaviour against women was so bad that by 2017 a whole victims compensation scheme needed to be set up to pay out survivors. This is also an organisation that has paid out over $40 million in the past five years in damages alone to victims of police harassment, misconduct and violence. But this figure does not include the legal fees that Victoria Police incurred defending civil claims, which are likely to be much higher than the damages themselves. Nor does it include the legal expenses trying to block IBAC from investigating systemic police misconduct, such as the Lawyer X case, which because the taxpayers are funding it, invariably means using the most expensive legal advocates and ending up in the highest of courts.

Because the taxpayer – not police or individual officers – is liable, Victoria Police spare no expense to use every legal resource to try and delay, obstruct and defend against not only those victims seeking damages but those integrity agencies trying to uncover the wrongdoing. We have seen examples of this excess during the Lawyer X saga, with Victoria Police as recently as last week adopting yet another novel defence to try and block paying damages. Let us not for a moment think that this expensive tactic is unique to this case. It is standard operating procedure. This amounts to hundreds of millions of dollars spent not on keeping us safe but on lawyers trying to block exposing police misconduct, often on obscure technicalities. This is an organisation that in 2014 even tried to deny paying damages to its own injured officers by claiming in the courts that police officers were not employees of the state government but in fact were agents of our Sovereign Lady the Queen, meaning injured employees had no grounds to sue the state for compensation. We have no idea how much this absurd legal defence cost Victorians.

If the government spent a quarter of the public money on reforming oversight of Victoria Police as it does on avoiding consequences for their misconduct, Victorians would not only save money but be a lot safer. Now we are presented with a bill, supposedly in response to an emergency that turned out not to be an emergency, to deny damages but not the legal costs in specific cases of police misconduct relating to the Lawyer X scandal. Let us be clear: the Greens are all for limiting the significant legal costs and damages – tens of millions of dollars spent every year – because of the litany of misconduct, corruption and criminal behaviour of Victoria Police. But even given the extraordinary nature of the Lawyer X scandal, denying or limiting damages from this single case among the hundreds of cases involving police every year without limiting the cost of the publicly funded legal defence is not the way to protect taxpayers.

There is only one way to protect taxpayers from excessive financial exposure from the actions of Victoria Police, and limiting the damages is not the way to do it. Rather than stopping the damages, let us invest a fraction of Victoria Police’s ballooning legal bill into establishing a fully independent and well-resourced police ombudsman to expose this conduct and drive higher standards and performance. What is more, let us end racist policing by adopting best practice reporting and monitoring of police interactions with First Nations Victorians and people of colour; increasing diversity, including by having equal numbers of women in senior positions and mandating diversity targets in recruitment; removing public liability for the Police Association Victoria; and setting caps on legal defence expenses against police. But the Victorian Labor government has not been interested in getting to the core of the issues that led to the very situation we are in today that led to it having to try and bring on this bill in the first place.

The Greens are not anti police, but we want a more professional police force and a more effective police force, one that can be trusted by everyone in the community to act with integrity at all levels. If we can agree to strive for this, then it is imperative that we establish a fully independent and well-resourced police ombudsman. That is the prerequisite for the best police forces, the most professional and the most respected anywhere in the world. Let us establish a police oversight system that drives excellence in our police force rather than legislating to cover the extensive legal liabilities of a rotten and dysfunctional one.

Georgie CROZIER (Southern Metropolitan) (10:56): I rise to speak to the State Civil Liability (Police Informants) Bill 2024, and I have to say this has been quite a farcical situation given that it was introduced as an urgent bill some weeks ago. We had what occurred in the lower house, it was brought over here and then it stalled. It stalled because the government had not done their homework properly. There are issues around this bill that have been well and truly canvassed by my colleague in the other place Shadow Attorney-General Michael O’Brien. I would urge all members of this house to read his speech, because what the government is doing is setting a precedent that will potentially undermine the very elements of how we apply the rule of law in this state.

We know it has been a sorry saga, the Lawyer X case as it is colloquially known, the case of Nicola Gobbo, who was a barrister who informed against her own clients and who, also being a human source for Victoria Police, was in breach of both her legal and her ethical obligations to observe that very sound principle of client legal privilege. I think this is the issue that is at stake here in relation to what then sparked the royal commission after the issues arose around Faruk Orman. I will not go into all of the details around why he walked free, but that sparked the royal commission. It was a very –

Jaclyn Symes interjected.

Georgie CROZIER: He walked free after it – that is correct. Thank you, Attorney. You are correcting me, correctly. But the point is the royal commission that was undertaken to look into this matter was a really sorry saga in terms of what went on. It occurred under the previous Labor government with former minister Bob Cameron, who is quite prominent still within government circles, the former police commissioner and a whole range of people that were –

Evan Mulholland interjected.

Georgie CROZIER: Mr Overland? Yes, he was appointed by the Labor government to the City of Whittlesea. That is exactly right. Those people are still moving on, but it has been a very, very sordid and sorry saga, and here we are debating this bill, where the government are trying to cover up their mistakes. This is to cover up their mistakes – make no mistake about what this bill will do.

I know that the government has been frantic, as I said, to get this bill through the house. It was introduced as an urgent bill. It should have been knocked out there and then because of the way it was rushed in and the farcical situation that the Parliament had to go through, and here we are a month later debating it. There have been concerns raised by a number of people, including Mr Limbrick. But I will come to Mr Limbrick in a minute. I want to just read this from Jeremy King, who is well known, I am sure, to the Attorney, in relation to some of the issues. He has also got concerns around Mr Limbrick’s amendments, which the government has, I understand, agreed to. Those concerns are:

As you would understand I have significant concerns about restricting an individual’s right to sue the government for corruption/misconduct.

That is what this is really about. He said:

Further, one of the active cases I was involved in, Mr Orman, was unlawfully imprisoned for 12 years as a result of the corruption/misconduct. In this scenario, he would ordinarily be entitled to compensation far exceeding $1 million.

But the amendments that Mr Limbrick is putting forward are just that – $1 million. That is not a difficult task for the government to sign that cheque and be done with that issue. He goes on and explains the issues around the charter of human rights and a unique provision which does not exist in Victoria. He is talking about Mr Eastman, a case that was well known in the ACT. Mr Orman is suing the government based on malicious prosecution and a range of other things. But those lawyers in the room will understand the extent of this, and I think the point I am making here is that there are deep concerns by those in legal circles around the government’s approach. He is saying that given the precedent that this is setting and given what has happened in other jurisdictions:

To interfere with these torts to restrict them is deeply problematic from the point of holding government to account for misconduct and corruption.

To every Victorian who understands or has been concerned about the lack of accountability or the misconduct and corruption – we have had far too much of that play out in this state over many years in many areas – I say again: this is a bad bill. This government is trying to cover up its mistakes.

Mr Limbrick has quite successfully enabled them to get away with covering up those mistakes. Mr Limbrick’s amendments are not going to provide the accountability or those issues that Mr King and others have raised, and we will be asking about these. There are many concerns around how you justify putting a cap on the price of justice by those who have been wronged. It does not matter who it is. If they have been wronged, they have been wronged, and that is why we have the rule of law. Putting a cap on that like this does not presume anything; it does not presume that that person that has been wronged will actually go to court or will actually continue with their case. There is a presumption here through Mr Limbrick’s amendments that that is the case. It is not the case. To have that arbitrary cap – what analysis has been done? Why did you pick that figure? There are so many holes in these amendments that have been proposed by Mr Limbrick, which the government are supporting because they know that they have to get themselves out of a pickle. They have got themselves into a terrible bind over this, rushing it in as an urgent bill. It should have been knocked out when it came in. It should have been debated when it came in as an urgent bill, yet it was stalled in this place.

There are other issues that I have not got time to go into. The royal commission itself found the extent of the wrongdoings. The DPP was very questionable around decisions around this case as well, and I think many have commented on that far more eloquently than I. But this bill is a bad bill which is going to set a precedent in this state. It is truly a situation where the government themselves are trying to, as I said, get out of this, to limit the liability of the state by extinguishing causes of action. I think this is a detrimental step to be taking. I want to also make the point that what the bill actually does is it gives the government of the day extraordinary powers to shield the state from the damage caused by its own actions to Victorians. That is the crux of what this bill is doing: it is protecting the government against their own failings and their own wrongdoings. Why should we be supporting a government to cover up mistakes that have occurred in regard to them? The other aspect around it is the retrospective nature that it takes.

I am not going to speak anymore. I know that Mr Mulholland has covered off the many points of this concerning bill. I would urge all members to not support the amendments that are being proposed by Mr Limbrick, given the free ride they will give the government to enable this bill to get through as they want. This bill should be defeated. It is a bad bill. It is a bad precedent for Victoria.

Jaclyn Symes interjected.

Georgie CROZIER: No, we are not supporting Mr Limbrick’s amendments. We do not agree with them. As I have said, we want this bill defeated. This bill should have been debated when you brought it in as a so-called urgent bill. It has been stalled here for weeks and weeks and weeks. The only reason you are bringing it on today is because you are supporting Mr Limbrick’s terrible amendments. He is enabling this to get through the Parliament. I say that is a bad move – supporting the government and the crossbenchers that are supporting Mr Limbrick. This is a bad bill. It should be defeated as it is presented, unamended. And I say even if it is amended, it should be defeated.

David LIMBRICK (South-Eastern Metropolitan) (11:07): I also rise to speak on the State Civil Liability (Police Informants) Bill 2024. Let me state from the start that I share many of the concerns that the opposition has raised about this bill; in fact I was horrified by it when I first saw it. On the prospect of this bill passing unamended – which, I might add, is still unknown – absolutely I agree it should not pass. We did extensive consultation with many stakeholders, as would have other members of this place, and the concerns raised with me were raised in the media publicly. The main concern that people had was the human rights charter override – I share that concern – which means that the bill is not subject to the Victorian Charter of Human Rights and Responsibilities, and for that reason I would oppose it. The other problem with it is that it would prevent cases going to court by extinguishment. This is also a very deeply troubling thing that could not be supported.

The government has come out and said, ‘Actually, the reason we’re doing this is about money, and we don’t want to cover up cases.’ I share concerns about the report from the Office of the Special Investigator and the fact that people have not been held criminally liable. But when people say the government is paying people, which is what we are talking about here in civil cases, it is not the government paying anyone, it is taxpayers. I challenge the government: if it really is about money, let us look at an option which is a cap. That is what I have proposed, and that is the amendment that my team has come up with. Here is the thing: we still do not know what the outcome of this bill will be. I urge people to support these amendments because they do address many of the concerns that were raised by people during the course of the discussion. I should probably circulate those amendments now, if possible.

Amendments circulated pursuant to standing orders.

David LIMBRICK: What these amendments do in their substantive nature is remove the human rights charter override – which I know many people have concerns about; in fact there was discussion in the chamber yesterday about this – and also replace the mechanism of extinguishment, which was proposed by the government and which I also oppose, with a cap on damages. They do not affect anything to do with costs or settlement or anything like that that could otherwise have happened.

For clarity and transparency during the course of this debate, although I do not support the bill as it is, I will be supporting the second-reading vote, and we will test the amendment during the committee stage. If the amendment fails, I will oppose the bill. We will see what happens during the committee stage of the debate. I am sure many people will have many questions for me, and I will do my best to answer those questions. But I will say this: I acknowledge, like many people in this chamber, that this entire Lawyer X saga has been an absolute scandal. It is the outcome of prohibition. Anyone who knows my background – you only need to read my inaugural speech to know – will know that I am against prohibition. This entire saga has been caused by prohibition, and I am angry at the government for not looking at the root causes of these issues that we have had in this state around organised crime. I wish that they would look at the root causes rather than constantly playing whack-a-mole with the consequences.

We have to acknowledge that the financial resources of the state are not infinite. The taxpayers cannot simply keep going on and on and on and on in our current financial state. If the government claims it is about money, then we will see if it really is about money. My amendment will allow cases to still go to trial. It will not extinguish that right.

Trung LUU (Western Metropolitan) (11:12): I rise today to contribute in relation to this bill. I strongly oppose this bill, because Victorians deserve a transparent and accountable government. It is a dark day when people are pushed away from fair trials, appeals and compensation. Also, on Mr Limbrick’s amendment, I oppose the amendment. I do not agree to the amendment. I will go to the bill, but I will address the amendment at this stage now. I was wondering: who are you to dictate and to give a number for persons who have wrongfully been convicted, have spent time in jail and have appealed? You pick a number for their suffering – a number which you determine. It should be the court who decides after it has gone through the court and been discussed in relation to how long that person has been incarcerated, how long he has been put in jail for. This can be determined by the court. It is not for us in the Legislative Council to determine what pain and suffering, for compensation, that person has gone through.

Secondly, this bill fails to meet the expectations of the community of a full and complete disclosure of the Lawyer X scandal. This bill poorly addresses past legal issues. Its rushed-through nature in the Legislative Assembly revealed that this government fears scrutiny. In its haste these actions have not been thought through and they undermine the rules of law. It is unacceptable in a society to change the law to fix political problems. This bill seems to be an attempt with the sole purpose of protecting those in government from embarrassing court cases and protecting those accountable from civil liabilities, rather than what it claims about saving the public purse.

This bill also has in clause 4, by definition, the following groups extinguished from any action: Victoria Police, public bodies appointed by a minister, public bodies appointed by the Governor in Council or ministers, a person holding office under this act or any other prescribed entity. This is not about saving taxpayers. This is not about protecting taxpayers interests. It is about protecting those accountable.

As we have seen with previous payouts, the amount of compensation from the Lawyer X proceedings is not known, but in the 2010 lawsuit Ms Gobbo, alleging damages, demanded $20 million but settled with Victoria Police for $2.8 million. Unregulated interactions with special arrangements are what led us to this debacle over improper handling of confidential information and the recommendations of the royal commission, costing over $200 million of taxpayer money.

This bill also clearly states that the Charter of Human Rights and Responsibilities does not apply. Why is that? It is all about a cover-up. Despite the royal commission, $120 million was spent by the Office of the Special Investigator, which was a ‘whitewash’ in the words of many special investigators that I have spoken to, some of whom I worked with prior to coming to this house. In his disgust in relation to the Office of the Special Investigator’s case against officers – that is, Victoria Police – former High Court Judge Geoffrey Nettle stated that it appeared to be ‘a waste of time and resources’ to pursue this matter any further. The special investigator’s office was closed and disbanded with very little to show after $120 million was spent in two years of investigation. A source for the OSI stated they faced obstacle after obstacle while investigating the officers and those accountable for the debacle of the Gobbo mess. While investigating these officers, the shelving of the investigation should be a concern for us all.

What this bill is really about is that every individual has a fundamental right to appeal, especially if you feel that your conviction is unfair and unjust. According to the Criminal Procedure Act 2009, part 6.3, section 274, ‘Right of appeal against conviction’:

A person convicted of an offence by an originating court may appeal to the Court of Appeal against the conviction on any ground of appeal if the Court of Appeal gives the person leave to appeal.

You have a right to a condition of equality before the law. Everyone is entitled to equal and effective protection against discrimination and to enjoy their human rights without discrimination. It is crucial that the decision on compensation remains in the court – unlike what Mr Limbrick has suggested be done in this chamber – not in the hands of government. Allowing the government to determine who is eligible for compensation under the right of equality is a highly risky process.

When the government rather than the court decides on eligibility of compensation, we are entering dangerous and murky ground that could erode justice and accountability. Gobbo’s actions undermined her client–lawyer privilege, a cornerstone of fair legal proceedings, but it does not sanction the government to undermine the justice system. Nicola Gobbo, a criminal lawyer turned police informant in 2004, compromised justice and led to many wrongful convictions. As a result, 125 of her clients were wrongfully convicted and imprisoned. Regardless of their history or background, all citizens, all Victorians, are equal in the eyes of the law. All Victorians have the right to a fair trial and a right to appeal. If they are wrongly convicted, they have the right to compensation, and it should be determined by the court, not the government. This bill allows the government to evade accountability, creating a double standard that undermines equal treatment under the law. It is clear this bill protects those involved in the Lawyer X scandal from liability. Already we see from the royal commission critical settings being averted for those involved, and now the bill is the next step in allowing them to escape the responsibility of civil liability.

The Law Institute of Victoria believe that:

… this fundamentally undermines the rule of law and administration of justice. The State has enormous power over its citizens, and for it to legislate out of liability when the power is wielded improperly is wrong.

According to Jack Rush AO, counsellor:

Not only, as stated, does this extraordinary legislation act retrospectively to strike down Orman’s claim, it means the police involved are unaccountable in any way for their “reprehensible” conduct.

Rushing legislation through the Assembly without sufficient debate raised questions about transparency and the legitimacy of the process. What is the real motive of this government for rushing this bill? Prominent legal figures from the law institute oppose this bill, warning the threat to the rule of law has prevented a civil claim of unjust imprisonment.

Now to the victim, Faruk Orman. Mr Orman was the first person who had their conviction quashed because Nicola Gobbo’s involvement in his case was deemed a miscarriage of justice. He was unjustly convicted for murder at the age of 25 and then spent a decade in jail, with a large chunk of this in solitary confinement. Mr Orman has always professed his innocence. After 12 years he was released due to a substantial miscarriage of justice, according to the DPP Kerri Judd KC, due to lack of material evidence found contradictory to his allegations. What this bill is doing is whitewashing the responsibility for civil liability.

In conclusion, the State Civil Liability (Police Informants) Bill 2024 is a step backwards for justice in Victoria, undermining accountabilities and transparency in this government. I urge all those in this chamber to reject this bill and uphold Victorians’ rights and values. The attempt to erase civil liabilities for those involved in the scandal allows the government to block Nicola Gobbo from exposing politically damaging information. The law should not be passed to limit embarrassment or to protect powerful individuals. Therefore I strongly oppose this bill, and I strongly oppose the amendment raised by Mr Limbrick.

Georgie PURCELL (Northern Victoria) (11:24): I will say from the outset that I will not support this bill or any proposed amendments today. I will aim to be brief with this contribution, but I think it is really important to get a contribution down today, given the attention on this bill and the huge risk that it poses. In this place it is not a flex to be a lawyer; there are far too many lawyers in here. It is not something that I actually talk about often, but I am in fact one. I went to law school. I have been admitted to the legal profession. One thing at law school that is drilled into you from the very beginning is how important the separation of powers is, but not only that – that it should never be interfered with. And that is why I cannot and will not support the erosion of the separation of powers between the executive, Parliament and the judiciary proposed in this bill.

It is entirely unconstitutional and highly inappropriate for the government to impose compensation caps and limit legal rights, especially when egregious abuses of state power are uncovered. This bill in practice would provide blanket immunity for Victoria Police officers and the government – officers who have displayed the most serious kind of misconduct and yet still continue to hold senior positions in the force. They have never been held to account for their gross illegal conduct, for their toying with real lives and for their intentional deception of our courts. While I acknowledge Mr Limbrick’s intention and attempt to improve this bill with his amendments today, they do not change the crux of the bill, and that is the issue here at heart and why it cannot be supported by me and members of the crossbench and of course the opposition, who have laid out their intentions as well.

Imposing a $1 million compensation cap and allowing only one civil claim to be pursued arising from the Lawyer X scandal per individual is a severe impingement on an individual’s legal rights, and we should all be concerned about that, whether it affects us or not. This would mean that many wrongdoings and cases of illegal conduct would never be prosecuted or realised, nor would justice be heard. We have never seen this kind of law in this state. This bill creates a concerning precedent for the extinguishment of rights and the removal of liability for all state powers. This has the effect of making litigation unviable as the compensation will not nearly outweigh the emotional and financial costs an individual will pay in running litigation.

The government wasted millions of taxpayer dollars defending the indefensible actions of itself and Victoria Police through the employment of Corrs instead of agreeing to an early settlement years ago. The government now wants to tell Victorians that it is those who have been wronged by the government who are chewing up their tax dollars, but it is the illegal actions of Victoria Police that have caused these proceedings. They had their opportunities for settlement, and they did not take them. Now they want to silence those wronged from telling the whole truth – truth that did not come out through the royal commission, as Nicola Gobbo and others were witnesses and not the ones leading evidence. They do not want you to hear that senior police in court hearings this year have already admitted that there was a so-called systemic tolerance of using a barrister as a human source to act in conflicts of interests. Nothing has been done to address this systemic tolerance of corruption and illegality, and nothing will be rectified until those responsible are held accountable and removed from these positions of power that they still hold. They do not want you to hear that in the Supreme Court of Victoria a judge has already expressed grave concerns that Superintendent Buick, the prosecution’s star witness, is allegedly not giving truthful evidence to the Supreme Court. The Office of Public Prosecutions also denied the recommendations of the royal commission to prosecute those involved.

We have heard the government say they want to save taxpayers money. It feels like this comes up every single time we have a debate about taxpayer money, but there are countless other things that we could do to save taxpayer money, starting with stopping propping up the cruel and dying racing industry or, even more relevant to this bill, stopping using taxpayer money to pay the salaries of police officers responsible for this illegal scandal, who were given a pay rise and a promotion from it. This is not about saving taxpayers money, it is about covering things up and shirking responsibility. It is not for the government or this Parliament to determine how much compensation an individual should get for the wrongdoings made against them. That power is entirely for the courts, and it should never be interfered with. While I understand that it is perhaps likely that this bill will pass today and perhaps be amended, I just cannot have my name as a parliamentarian putting a price on 12 years of wrongful imprisonment, the misuse of state power or disrespecting the rule of law.

Nick McGOWAN (North-Eastern Metropolitan) (11:29): I did not need a speech for today’s discussion because it does not take much to inform oneself about this bill – at a quick glance even – or to understand the difference between right and wrong. It really is that simple – it is the difference between right and wrong. As Ms Purcell said, our entire justice system is based on a number of key principles, and what this bill seeks to do essentially is to brush many of those aside and, in a unilateral way, remove from a number of Victorians – regardless of who they are and what they are accused of having done – any number of rights, not least of which is their right to access justice.

It is not really surprising that there are now a number of polls out there publicly where this government is quickly losing the support of the public because of acts just like this. There is some consistency with the way this government is now acting, and that is actually forming a trend. Not so long ago they also acted to remove the rights of injured workers in the mental health space. That is exactly what they did. In a disgusting display, the so-called party that represents workers actually removed the rights of workers who had proven their injuries. It removed their right to ongoing support and compensation –not just compensation but support. It was support for their mental health needs. They dictated that at a certain point in time they just cut them off, cut them off at the knees. This is the Victorian Labor Party 2024 for you.

It takes me back a little bit, this bill. I cast my mind back to those greater injustices that we know about around the world. It is ironic that today of all days is the day some might recall in history that, very sadly, the Afrikaner government not only unlawfully threw Steve Bantu Biko into prison but then promptly murdered him. He died on this day, 12 September 1977. Steve Biko was a champion for equal rights, for equality, for the proper use of the law. It took the Truth and Reconciliation Commission headed by Archbishop Desmond Tutu to get to the bottom of that. If this was South Africa and the year was 1977, then the Afrikaner government would have a very good friend in the Victorian government here in Victoria today. There are no two ways about that. They would be comfortable with you lot – comfortable. Shake your head all you want, but they would be comfortable because what you are seeking to do today, and you know it –

A member interjected.

Nick McGOWAN: It is disgusting. What you are seeking to do is remove the legal rights of people who have been wronged. Let us cast our minds to other examples, shall we? What about the Guildford Four? Does anyone remember the Guildford Four? That was a bombing of a pub by the Provisional IRA. It was also popularised some time later by a movie, but nonetheless it was a bombing of a pub, which the police at the time held a number of Irish citizens responsible for. They never did it, never were responsible. It was done by the IRA. The IRA later admitted that. And even when they admitted that, they still kept them in prison. I mean, this is the equivalent of what we are doing today here with this bill – these gross acts, this gross misuse of the law. As Ms Purcell pointed out, anyone who is legally trained or a barrister and encumbered with such a degree will know that what they are doing goes counter to all their teaching. They will know that it goes counter to all sense of fair play, of justice, of procedural fairness – you name it. They know what they are doing.

Rarely in my time in politics have I seen a government in such a callous manner extinguish the legal rights of the people of Victoria. Of course the most recent example was through COVID. Earlier today I interjected during another member’s speech in this place when they referenced the charter of human rights, and I said, ‘What a piece of garbage.’ It is a piece of garbage. We know it is a piece of garbage, because when it came to COVID there was nothing, and that garbage piece of document did not stand to defend one single human right we have here in Victoria. In fact, if anything, throughout COVID what we learned was we do not have a single human right. We do not have the right to be by our loved ones when they die. That includes our children, our parents, our siblings, our best friends and our partners. We do not have that right. We do not have the right to return to our own state, such is the garbage state of that piece of the so-called charter of human rights. So the inclusion or exclusion of the charter of human rights – I could not give a brass razoo. It is meaningless. I do not know why we even persist with it. We ought to have a proper bill of rights, a bill of rights that is something that actually can be defended and used at caucus. If we did, this bill would never be getting up. That is the truth. It would never, ever get up.

I have not even gone to the substantive arguments about why no-one in this place should support it, much less the Libertarian Party, so called. This is one of the great ironies of today: to be in the chamber – and the representative is not even here to see – and he has put his own amendments forward to limit the rights of individuals and their compensation. Libertarian? Libertarian in name only. I will have to look at the definition of ‘libertarian’, because if that is libertarian, then I am a hot dog, I tell you what, because that is ridiculous, absolutely inane. And then to sort of fancy foot around with the government and say, ‘Oh, well, I might support it if they do these amendments but then I might not’ and ‘I haven’t quite made my mind up’ – how could you not make your mind up? What is there to make your mind up about? If you have been wrongly treated by the law, you ought to take and get recourse through the courts. This is removing your right to get recourse.

Unilaterally and without any hesitation this callous Labor government yet again is showing its absolute disdain for the people of Victoria by ensuring that where the system and where the government itself makes an error, it cannot be held accountable for it. So what do we teach our children? Do we teach our children, ‘If the government make a mistake, well, that’s not so bad, because what they will do is they’ll legislate away their risks, they’ll legislate away their compensation, they’ll legislate away your rights. You will have no rights whatsoever under this government’?

I said a moment ago I had not even got to the crux of really I think my greatest beef – for lack of a better word, and I apologise to vegetarians in the room – with this legislation. That of course is that the plague that I would say has plagued – I would say government, but I am going to include our side of politics. I am going to include everyone. Why not? Let us go just go all in, shall we? The biggest plague on any government, particularly here in Victoria – and I would say it is a scourge – is the very fact that for some two, three or maybe four decades, maybe even longer, probably forever, everyone in this state has been responsible but no-one has been accountable. If there is any fairness, it is in the equal distribution of the responsibility, but no-one is accountable.

Here we have had a massive cataclysmic cock-up by the government, because ultimately they are responsible. We can point a finger at the police who enabled the circumstances. We can point to the police who should never have taken the information from Nicola Gobbo, sought it, accepted it or used it in the first place, and certainly no-one who participated in that in any right space or place should ever be promoted or rewarded for their behaviour. But I tell you what: in our system we have this funny old system called representative democracy, and in theory at least, the minister and sometimes even the leader – the Premier or the Prime Minister, depending on which level of government – take responsibility, because ultimately they are accountable. Well, have we had that here in Victoria? Of course not. The minister’s scalp was never taken – never resigned. The police minister at the time should have resigned in disgrace. That they have caused and had the oversight of such a barbaric use of information that corrupted the entire justice system and that no-one has ever been held accountable for that in the state of Victoria, and furthermore that this bill will serve to cover that up so that the hundreds and hundreds of people and their cases who were affected will never be able to see a proper legal recourse, makes the Guildford Four look like they were lucky people. Ultimately, they at least got justice. I mean the Guildford Four got justice. The people in Victoria will never get justice if this bill passes.

I hope someone in time goes back and looks at Hansard and actually fathoms the seriousness of what is happening here today. And for those who are visiting this place, let me make this very simple for you: if the government breaks its own laws, then the government is now seeking to protect itself not only by ensuring that you will never get an outcome in terms of justice but also by ensuring that you will never get a cent in compensation. So if anyone in the state of Victoria at the next election chooses to vote Labor, then that is what you are voting for. Well done.

This is what has become of the state government and the Labor Party here in Victoria. And they know better – I know they know better. There are good people in politics on both sides of this chamber – very good people, and smart people and educated people – and they know that what they are doing today is wrong. The only justification for what they are doing is that it is an economic decision: it is going to cost less, and they do not want to be paying out tens of thousands or millions of dollars, whatever, to people who are alleged criminals. I get that it is unsightly, but I did not create this mess. I certainly did not.

But if that is what it is about, a cost-saving exercise, then why didn’t we legislate the rights of the Commonwealth authorities when we cancelled the Commonwealth Games? I would have been more inclined to think at least twice about the concept, or toy with it, play with it. I could tantalisingly look at it. I could be a little bit more sympathetic, because $600 million is a lot of money. I would be tempted – you could tempt me. I feel a bit naughty even saying it, but it is true. But I probably would still have landed, when I think back to my mother and what she tried to teach me about the difference between right and wrong, in the same place – that is, it is just plain wrong. I would much rather have fought it out and taken the consequences, because there are consequences. When you are in government and you make decisions and you get it wrong, it is important that two things happen: (1) that someone takes accountability for it – that is yet to happen and will probably never happen, unless there is a change of government – and (2) that for those who were wronged, their circumstances are put right to the extent that that can occur.

We are left pretty much in the same instance as Steve Biko. He could not get any recompense or compensation for his wrong because he was killed. Here I am in this chamber today comparing us to the worst aspects of the Afrikaner government in the 1970s and 80s, comparing the Victorian Labor government to the worst aspects of the IRA in Ireland and the governments of the day and how they treated their various citizens. This is what Victoria has come to today. We are no stranger to it, as I said earlier in this speech. It was only a number of short months ago that we stripped Victorian workers of their mental health rights when it comes to compensation and ongoing treatment, support and assistance, and we did it in this place. Well, we did not do it on this side, and the crossbench did not do it either, and neither did the Greens or the Animal Justice Party. The Labor Party of Victoria did it.

Time and again, and I think it comes perhaps with longevity in government, we get persuaded perhaps by the bureaucrats, persuaded perhaps by the advice that we just cannot have this unsightly mess – it would cost too much, it is administrative, it is all too difficult – and we lose sight of what is right and what is wrong. I see that occurring even today with the Libertarian Party. They have lost complete sense. If they choose to support this in any way, shape or form – to insinuate that you can put a cap on compensation and that somehow fulfils your libertarian box is laughable. We should put through a private members bill that they cannot call themselves the Libertarian Party. They are not acting in a libertarian way. It would be deceptive if it were corporate behaviour. If I were a company, I could not behave that way.

Minister, I know that even you know the difference between right and wrong. I know that very well. I know that deep down in your heart you know this is the wrong bill. I know that you know that this is not the right way to proceed. I call on you, please, at the last moment, to pull it from this place.

Jaclyn SYMES (Northern Victoria – Attorney-General, Minister for Emergency Services) (11:44): I rise to make a few remarks about the State Civil Liability (Police Informants) Bill 2024. At the outset, this is a bill that has been introduced to the Parliament in my name, and I take full responsibility for this bill because it is the right thing to do. It was not an easy decision to come to the conclusion that this is the way that this matter should be dealt with. It took me some time to decide that this was the right thing to do, and I understand that there are strong views in relation to this. I understand that some people do not want to support it, and that is people’s right, but there are plenty of people who think this is the right thing to do, including lawyers. As is often the case in my world, you will always find a lawyer who agrees with one thing and lawyers that have polar-opposite views. That is my lot in life. Any characterisation that there are people that do not support this bill in stakeholder world is incorrect, but there have been many misrepresentations by members opposite in relation to this bill, and I will touch on a couple of them.

I do want to at the outset make it clear what this bill is actually about. It is about drawing a line under the spending of taxpayer dollars on the Lawyer X matter now that the work has been done to address this frankly appalling chapter in our history. The misuse of informants happened over a long time under both governments, and it is very clear to me today that, unlike me, no-one in the chamber has read the five volumes of the royal commission’s final report. I do not blame you; it is pretty heavy going. But it is a damning indictment of a period of time that should never happen again, and because we have taken steps in that regard, it will not. To suggest that it is a cover-up or an ability to try and hide those wrongdoings is a false characterisation. If anybody has read the report or anybody has read the decisions on the criminal matters that have been brought to the Supreme Court and also the matters that are going to be unaffected by this bill they will see that we will continue to be able to shine a light on matters that people have been held accountable for. The government has been held to account through the royal commission and through the criminal appeal process, which is unaffected.

Mr Mulholland has characterised that the bill contains many errors. Particularly, Mr Mulholland, you went down some avenue and stated that civil claims could only come from people who were convicted. That is false, and there are actually matters on foot right now from people who were not convicted. So I am concerned about some of the matters that were put on record, and I will be pleased to address some of them as I continue in my summing-up.

As I said, we have made sure these things can never happen again, and it is time to limit taxpayer expenditure for these mistakes. The government has designed a bill that extinguishes the causes of action to properly bring finality to these proceedings and expenses. This is a rare step, and as I have articulated it is not one I took lightly but one I feel is necessary. However, as many people have indicated, the government will be supporting a version of the bill as proposed by Mr Limbrick, with a liability cap, because we want to do whatever is possible to reduce costs.

We cannot be clearer about accepting responsibility and condemning the wrongdoing. For affected individuals, criminal appeals are in no way affected by this bill, and that was never contemplated. There have already been successful appeals, and we know more are on foot, each time shining a light on the deeply problematic actions and their impacts on specific individuals as well as the entire justice system. Our government has acted firmly and comprehensively. We established a royal commission and we are following through, with 49 of the 55 recommendations to government fully delivered, as confirmed by the independent implementation monitor.

I want to just touch on some comments that members have made about their assessment that the bill is unconstitutional. In particular, Ms Purcell made this claim. She can say it may be; that is fine, because it is a matter for the courts to determine. The High Court has jurisdiction in these matters; it is not for Ms Purcell or her office to make this claim. To declare that the bill as amended or in its current form would be unconstitutional is, as I said, not something that any of us can claim to assert. The High Court recently upheld an example of limiting liability. They unanimously rejected claims by mining magnate Clive Palmer and his company Mineralogy that legislation passed via the WA Parliament which was intended to prevent him from claiming billions in damages was unconstitutional. He claimed it was; the High Court said it was not. The High Court found that the effect of the WA act might be that it changed existing legal rights but this did not amount to a breach of the separation of powers. Of course the law may have been extreme, but the court ruled it did not interfere with the integrity of the courts, nor was it an exercise of judicial power by the Parliament. Of course liability limitations are rare, but that does not mean that they are offensive to Australian law.

Even with a capped model this reform will still reduce civil claims payouts paid for by the taxpayer. It can help reduce millions being spent on lawyers, courts, departmental resources and the like. The potential number of plaintiffs adds to the need to act. The Royal Commission into the Management of Police Informants identified 124 individuals directly impacted and 1011 as potentially impacted by the Lawyer X saga. So beyond the direct costs there are the costs across government and the justice system, including, as I said, courts and public servants responding to these matters. I do also want to note that it is not my intention to refer to individual matters in this debate or in the committee. This bill is not about individuals, it is about a response to this saga.

I would consider the government’s version of the bill the overall better option to achieve cost reductions. But I have had a lot of conversations with people in the chamber, and I accept that my proposal would not receive the support of the house and perhaps Mr Limbrick’s might. With that in mind, we will be accepting Mr Limbrick’s proposal. It is somewhat hypocritical and bemusing for those opposite to suggest – they have had a pile-on on Mr Limbrick, but I am sure he can defend himself – that they will not be supporting his amendment, even though they acknowledge that expungement is worse. I think that was what I was picking up from their contributions. In some way they do not want to reward Mr Limbrick’s ‘outrageous’ behaviour by, in their own characterisation of the bill, ‘making it less worse’ – a matter for you to contemplate. We had the bill that was best for taxpayers. Extinguishment would clearly reduce time and resources and avoid more money being spent on lawyers.

Of course in the development of this bill I looked at many options. I looked at a cap, and I looked at a requirement that damages be reduced by a certain percentage. I got a lot of advice in relation to all of these matters. Ultimately, I was persuaded by extinguishment, because the other options do not put an end to litigation and all of the legal costs on both sides and the time and resources needed to manage these matters, which we have already been experiencing. That said, I agree that other options do have merit. I accept that many in this chamber felt the government’s version went too far. We do still want to do whatever is possible to reduce costs, and as I said, it has become clear that the most likely way to secure passage of this bill is to adopt a capped model. I will put on record that I would have preferred a half-a-million-dollar cap to disincentivise unmeritorious claims, but I accept that a $1 million upper limit of the total cumulative damages goes a long way to achieving our cost reduction goals. My intent in supporting this amendment is that it operate as an upper limit of compensation, and I fully anticipate lower claims and awards.

I want to touch on some arguments that have been bandied around about the fact that this bill will somehow create a precedent. No, that is quite absurd. The circumstances surrounding the Lawyer X saga are so exceptional that to suggest this can be somehow used as a precedent for something just does not stack up. There have been accusations that this change will open the floodgates to further limitations on liability for historical sex abuse cases and the like. That is, as with my previous comment, just absurd.

Limiting liability through statute is rare and, as I said, was a difficult decision to make. But it reflects a financial imperative in these exceptional circumstances which, as we know, led to a very expensive, very detailed royal commission. This has absolutely nothing to do with any other form of liability that the state may be facing. Alternate theories about the state restricting liability over, as I said, historical sex abuse cases or environmental or animal activists are baseless and have absolutely nothing to do with this bill.

Liability limitations are not unheard of. I have got some Victorian examples that I have brought to the attention of the Shadow Attorney-General, which he obviously did not pass on to his members. Section 28G of the Wrongs Act 1958 provides that in certain personal injury claims the maximum amount of damages that may be awarded to a claimant for non-economic loss is $577,050. Section 134AB of the Accident Compensation Act 1985 prevents a court from awarding pecuniary loss damages or such damages that exceed a specified amount in certain circumstances. And section 251A of the Petroleum Act 1998 states that the state is not liable in any way for any loss, damage or injury arising out of certain petroleum-related decisions. Any such legislative reform in that regard has gone through a rigorous bill process and a rigorous process through the Parliament, and I would expect this to be the same.

Council divided on motion:

Ayes (22): Ryan Batchelor, John Berger, Lizzie Blandthorn, Jeff Bourman, Moira Deeming, Enver Erdogan, Jacinta Ermacora, David Ettershank, Michael Galea, Shaun Leane, David Limbrick, Tom McIntosh, Rachel Payne, Georgie Purcell, Harriet Shing, Ingrid Stitt, Jaclyn Symes, Lee Tarlamis, Sonja Terpstra, Gayle Tierney, Rikkie-Lee Tyrrell, Sheena Watt

Noes (18): Melina Bath, Gaelle Broad, Katherine Copsey, Georgie Crozier, David Davis, Renee Heath, Ann-Marie Hermans, Wendy Lovell, Trung Luu, Sarah Mansfield, Bev McArthur, Joe McCracken, Nick McGowan, Evan Mulholland, Aiv Puglielli, Samantha Ratnam, Adem Somyurek, Richard Welch

Motion agreed to.

Read second time.

Business interrupted pursuant to standing orders.